The Free Exercise Clause and Genetic Engineering Regulation

Speaker 1

Next, we have John Niman. The Free Exercise Clause and Genetic Engineering Regulation. So, yeah, we’ve got a slate of lawyers coming up here. John is in the last semester of law school at the William S. Boyd School of Law at the University of Nevada, Las Vegas. And he additionally writes for several online publications, including IEET, Institute for Ethics at Emerging Technologies. Transhumanity dot net and H Plus Magazine. John.

John Niman

So first of all, I just want to say thank you for having me talk. And immediately after saying that, I want to jump right in, because as per usual, I have more information, I think. In time. Oh, sorry, yes.

John Niman

So the free exercise clause, right, genetic engineering is sort of a placeholder here. I think a lot of science could work. But I’m going to use genetic engineering as a case study. And in fact, what I’m going to do is I’m going to give away the punchline right away. So here’s the whole joke. Well, it’s not really a joke. The overview, right?

John Niman

Religions get special legal protection based on our Constitution. I think Mormon transhumanists ought to have access to these legal protections. And I think that those legal protections might possibly speed scientific discovery. So we might actually see religion furthering science in a way that secularism cannot. So this is quite a trick. Let me show you how it’s done.

John Niman

We start with the First Amendment, right? The First Amendment is broken into two clauses. Congress should make no law respecting an establishment of religion, is the establishment clause. And then the I’m not going to talk about that part of it, but I’m going to talk about the Free Exercise Clause. And if we put all the pieces together, essentially what it says is Congress shall make no law prohibiting the free exercise of religion. That doesn’t sound very debatable, right? It’s pretty plain language. You’re not going to make any laws respecting the free exercise of religion. But in fact, there has been lots of debate. You’d be surprised how much stuff lawyers can debate about. And it almost never meant what it seems like it meant ever since it was written down. So here’s some of the more recent jurisprudence on the free exercise clause, right?

John Niman

For quite a long time, the idea that people could do essentially anything they want so long as it’s in furtherance of the religion Was not accepted, right? But there was a division between belief and action, and I think it went as far away from what it seems like it means in the Second Amendment. As it has so far in Employment Division v. Smith in 1990, where the Court essentially said what the Second Amendment means when it says Congress won’t make any law that prohibits the free exercise of religion. Is that Congress can’t make a law specifically intending to prohibit a particular person’s free exercise of religion, right, or a particular religious group’s But so long as they create what’s called a general law of neutral applicability, right, so long as it’s applicable to everybody, if it happens to prohibit the free exercise of your religion, that’s too bad, right? Sorry.

John Niman

Congress was not very happy about that. They passed what’s called the Religious Freedom Restoration Act in 1993. It’s a greatly worded bill, right? Everybody will vote for it. And in fact, almost everybody did. And it basically told the court, you have to judge free exercise claims by an earlier standard. And I’m going to get into detail on what that standard is in just a minute.

John Niman

So the court came back in City of Bernie v. Flores. I’m talking about the Supreme Court of the United States here. And they said, look, Congress, you don’t have The jurisdiction to tell us how to interpret state law claims. We judge state law claims based on state constitutions, and you don’t have anything to do that or to do with that. But then in Gonzalez in 2006, the court recognized: look, if you want to hold yourself to this standard, if you want to have your laws judged more harshly, fine, we’ll do that, no problem.

John Niman

So here’s the RIFRA test, right? There’s a big long legal text here, much longer than the Second Amendment, but it sort of lays out the test. I’ll give you the upshot so you don’t have to read the whole thing. The basic idea is this: somebody who brings a RIFRA claim, right, so a religious member bringing a free exercise claim, has to prove two things. And those two things are generally pretty easy to prove, and they’re intended to be pretty easy to prove. First, you have to prove that you have a religious belief, right? You’re operating out of religion and not, say, philosophy or general goodwill or altruism or something like that. And then you have to prove that the free exercise of your belief has been substantially burdened. So neither of these two things are super hard to show.

John Niman

Then it’s the government’s job to prove two things. They have to prove that they have what’s called a compelling interest, which is sort of a legal term of art for a really, really good reason, right? Which is, you know. And then they also have to show that it’s narrowly tailored, right? Essentially, we’ve infringed on your belief as the right of exercise as little as we possibly could. In furtherance of this law. And in fact, this is the test that virtually all of the rights that are protected under the Bill of Rights undergo. It’s called strict scrutiny, right? Or this is a form of it. And as you can see, real quick down at the bottom, religious exercise is very broad and it’s intended to be very broad. It doesn’t have to be central to or compelled by even a system of religious belief.

John Niman

So, genetic engineering laws, let’s talk about those for a second. I was a little bit, actually I was kind of a lot surprised when I started my research for this was a paper for one of my classes. There’s actually no law out there that says you cannot genetically engineer a human being in the United States. It just doesn’t exist. Instead, what we have is a whole list of regulatory agencies, many of which I imagine Aubrey’s probably familiar with back there.

John Niman

The upshot of it is this. Very difficult and very expensive to get really any kind of medical procedure, but particularly one for genetic engineering, even if it’s used to treat disease. pass through the whole system, right? It’ll cost tens or hundreds of millions of dollars to run all the experiments that you need and do everything else. And there’s whole sets of laws from all of these agencies and probably a couple more beside That regulate it.

John Niman

Now, that’s if well, that’s true whether or not you want to have a genetic engineering treatment for a disease or just a straight-up human enhancement. But the idea that it would get approved for human enhancement is much, much smaller, right? And if you decide, well, you know what, I’m just not going to do it. I’m just not going to pay the money, and I’m not going to ask. I’m just going to do this in my garage or my lab or whatever. You may well find yourself getting visited by the Office of Criminal Investigations branch of the FDA, where they can impose civil or criminal penalties. So the point here is where while there’s no federal law that prohibits genetic engineering, there’s a lot of regulations that act in a law-like way, right? I would say that they’re kind of quasi-laws.

John Niman

So some MTA beliefs here, right? I’ve only got two pieces of scripture. Obviously this isn’t everything. We’ve heard lots of great scripture here that ties the idea of transhumanism and the idea of Mormonism together. That’s the whole purpose of this group. And it was really exciting for me when I found it. Not least of which, because I realized I didn’t have to invent a religion for this paper that I thought I had come up with. I said, you know, this’ll do pretty well. So

John Niman

The idea here is at least this, and this is sort of a a conservative formulation of this idea. It’s at least plausible. That Mormon transhumanism mandates that Mormons work through science to perfect the human body pursuant to a command by God, right? Lincoln talked about this right when we got started. So it’s at least plausible. You can make that argument with a straight face in court, I think. And I think we have probably 30 expert witnesses here, right?

John Niman

You know, Brad was just talking in his. Speech there about the ability to choose traits. Well, this is one way to do it, right? Through genetic engineering. We’re not there yet. We can’t do it right now, but it’s something that we could do if we got everything in order.

John Niman

So, how might Riffer apply to the MTA? So, in this hypothetical, I said, well, let’s say that somebody in the MTA decided they wanted to just start genetically engineering willing members, right? They’re not just kidnapping people off the street or anything. How would this work under the Rifred test?

John Niman

Well, Mormon transhumanists have a religious belief. That’s the first thing they have to prove, and that’s very easy, right? For a number of reasons. One, Mormon transhumanists aren’t their own separate religion. In fact, as best I can tell, you are very scrupulous about saying, look, we’re Mormons first. And at this point, that Mormonism as a religion is not even really that questionable. But even if, even if, the court wanted to say, well, but Mormon transhumanism is a completely separate thing. I think that organizations like this and lots of the people in it have done an excellent job tying scripture to science and showing how the two things can be mandated through religious text, right? So you don’t have to have a religious belief that goes back forever. It just can’t be a fraud on the court, right? And I think that we’ve walked out line here so far.

John Niman

And so the second point is the free exercise of that belief, at least to the extent that genetic engineering counts, is substantially burdened by regulation in terms of having to pay tens or hundreds of millions of dollars. and having to keep track of a bajillion different laws by seventeen different agencies or whatever. I say here, right, it’s possible that not even a single lawyer could ensure compliance with all of the laws, right? You might need a small team. So what’s the government going to say about it, right?

John Niman

Well, the government well, let me start with strict scrutiny, right? Laws under strict scrutiny are generally expected to fail. There’s a law professor, a scholar, who wrote an article, and he said, strict scrutiny is strict in theory, but fatal in fact, right? That means almost every time A law that’s under strict scrutiny gets challenged, it fails. It’s sort of designed that way. And yet, I say I think the government might be able to show a compelling interest.

John Niman

Now, there’s a couple of interesting legal points here, right? In general, it’s probably not a bad idea that we regulate genetic engineering. All of the stuff that we have is kind of probably a good idea. We don’t want just everybody doing whatever they want with any kind of oversight whatsoever, because people really can get hurt. And badly, right? Um and yet the test is going to say that

John Niman

The government has to show that the interest in regulating genetic engineering runs directly to the MTA member, right? You have to prove that not granting an exemption. Will cause the harm that you’re concerned about, that is creating your compelling interest. There’s an interesting problem because Nobody’s actually done it yet, and the court in Gonzalez said that mere possibility and speculation of harm is insufficient to overcome strict scrutiny. So you can’t have a compelling interest because you’re afraid something bad’s going to happen, and we haven’t done it yet, so nothing bad has happened, right? I don’t think that That might be insurmountable. It’s possible. And then I say it’ll be much more, or it might be much more difficult to show that the regulations are as narrowly tailored as possible. Well, that’s going to depend on what kind of compelling interest they show, right?

John Niman

Some likely ones on the low end are we want to make sure that nobody gets hurt. We want to make sure that nobody gets killed because these are things that are possible if genetic engineering goes awry. Those are pretty decent compelling interests. But if you think about sort of the hysteria about GMO debates when it comes to food, right, frankenfish and whatnot But then apply that to human beings. You can imagine that they could come up with a whole stack of books about what could possibly go wrong up to and including zombies. Zombies are a pretty compelling interest, but I don’t know that it’s likely to happen. And yet, right, there’s whatever the compelling interest is, it’s probably likely that there’s some forms of genetic engineering that don’t necessarily apply that way, right?

John Niman

So if your interest is harm. It might be more likely that you’re going to harm somebody if you want to, say, raise IQ or generally bolster an immune system because you’ve got so many different genes interacting in so many different ways, right? We saw a small subset of metabolism, and how are we going to engineer with that? But maybe it’s not so hard to change eye color, right? Or height, or sex, perhaps, right? There may be things that can be engineered safely. If the concern is zombies, right, probably there are some things that are less likely to lead to zombies than others. I hope, right?

John Niman

So some likely outcomes. What might happen here if this actually got challenged? So as I say first, right, technically under strict scrutiny is generally expected to fail, right? So you’re kind of going in with a good chance of being able to overturn the law right off the bat just because of the protections that you have.

John Niman

However, as I say here, courts tend to be more lenient, and I mean that towards the government when interpreting free exercise claims. It seems like. More claims of a violation of free exercise get-through than we might normally expect out of a general strict scrutiny claim.

John Niman

So it’s possible that an MTA member might submit, say, 25 different genetic engineering experiments they want to do. And the court might say, well, these 10, that’s too dangerous, right? The government has a compelling interest for that. It’s narrowly tailored, so you can’t do those. But these 15 pass, right?

John Niman

And so if you imagine an MTA scientist standing side by side with a secular scientist, Even in the middle here, this is a win because the MTA scientist gets 15 experiments with at least some lessening of the expense in the regulation as compared to the secular scientist By the way, the test, if a secular scientist wanted to challenge these laws, is essentially: can the court think of some possible reason that Congress might have had, whether they did or not? to pass this law that’s rational, right? Can we come up with some reason they might have had? So you can see that just because you’re coming from a religious place, right, because you’re invoking your religious protection, You get a whole wallop of protection that the secular sciences don’t.

John Niman

But finally, right, it’s always possible to lose. So it may be the case that despite strict scrutiny and despite all this compelling interest talk, Uh the court will come up with some reason not to allow it, and uh I think it’s a real concern, considering we’re talking about human genetic engineering.

John Niman

Finally, just one last slide. You had a disclaimer, I think, right before your talk. I have mine, right? Don’t try this at home. If you’re going to genetically engineer people, at least talk with one licensed attorney first, because I am still in. School and can’t give legal advice. Thank you.

John Niman

All right, I think I have one question. When do you graduate? May.

Speaker 3

Okay, here’s here’s my question. First of all, as a law school grad, I can tell you you will get sleep one day. But here’s my um here’s my question. Okay, if I could, I’d just like to play Devil’s Apple. Please, I love it. What is the new deal of people? I went up to the Devil’s Appendance.

Speaker 3

What’s the distribution? So. And I did a paper similar like this in law school where the free exercise clause does not protect religion. And so I want to place this Comment in the form of a question as if I you brought this before me as a judge. Sure, absolutely.

Speaker 3

Malachi v. 1998, it was the case of a man who was arrested. Who practiced what he called Rastafarianism because he was smoking and distributing marijuana. He claimed it was his religious belief, and that’s how he became connected to God was through smoking marijuana. Okay? The free exercise class did not uphold in that case because they called it a moral interpolative against society. Okay. Violated society.

Speaker 3

Or another case of Hayes versus California in 2006. Where a woman was arrested for biting a human being because she’s claimed Samuel was her religion. Therefore, she should have a right. To practice her religion, even though she committed an assault, and so her case was not at all.

Speaker 3

So let’s say this thing is made illegal. How do we think Or how would you come to me and convince me that genetic engineering in the sense that, oh, well, I’m a Mormon, therefore this is my religious belief, how do you get around that?

John Niman

All right, so I would say uh I guess two things real quick. Is there a way you could recap that? Some reason the mic is not working. Sure. As soon as Poft it doesn’t work.

John Niman

So the idea is there’s some court cases out there that show that you can’t just do whatever you want in the name of your religion, right? And that’s absolutely true. That’s certainly true. So I guess one distinction is those two cases that you cited, I think, sounded like state cases, right?

John Niman

At least the second was versus California. And so the free exercise clause, as far as states are concerned, Is still what the government said, or what Skoda said there, a general law of neutral applicability Minus all kinds of complicating factors like the state having passed its own miniature Religious Freedom Restoration Act, which a lot of them did, right? But I think more to the point, there’s really there’s a really tight connection, I think, between what’s possible with genetic engineering and what Mormon transhumanists want to do and what they think Scripture requires that they do. And I think that, for instance, there’s probably much more supp uh literature and support behind it. other than say either Rastafarianism or Vampirism, right? There’s lots of MTA stuff that explicitly ties text uh to Practice.

Speaker 3

Well, I’m just saying, like, so if the government declares it illegal, but we as Mormons believe we have a moral, religious, God-ordained obligation to do so, how do we then argue that in defense of our action? The same way that the Rastafari did. Well, this is the way I commune with God. You are computing on my right to commune with God by smoking weed.

John Niman

So if the organization that makes it illegal is the state, I think that the MTA member is likely going to be in the same position as the Rastafarian and the Vampirism person, right? If the federal government makes it illegal then the MTA member can take advantage of RIFRA and not just rely on the free exercise clause alone, and they’ll have, again, heightened protection because Congress has essentially said that they want to hold their own laws to this higher standard. And so I would say that neither of those cases are apply. They’re distinguishable, and we can use this other higher standard.